Previewing Prop 8 And DOMA: Part I — The Amicus Briefs
As you almost surely know, the Supreme Court will shortly hear oral arguments on two cases of monumental importance to the LGBT rights movement: Windsor v. United States (the Defense of Marriage Act case) and Hollingsworth v. Perry (the Proposition 8 case, which has undergone more name changes than Prince). By the conclusion of oral arguments on March 27, we might have a pretty good idea of which way the Justices are leaning on these cases. A decision is expected by late June. As we approach that date, I’ll be writing a series of columns explaining the legal issues from several different perspectives. (You can let me know in the comments if there’s any particular question you’d like to see explored or answered.)
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Let’s start with an issue that might not occur to you right away: amicus briefs.  The two cases have spawned an almost unfathomable number of these amicus briefs – I counted at least 80 such briefs in the Prop 8 case, and more than 40 for DOMA (with more coming in….). My guess is that this is some kind of all-time record. So, what is an amicus brief? And do they matter?
The full name of these documents is amicus curiae, Latin for “friend of the court.†They are written to provide the court with a perspective that might otherwise be missing. In the case of marriage equality, amici (the plural of “amicus,†for you non-Latin scholars) have supplied an avalanche of such perspectives: in addition to additional legal lenses not fully developed by the parties, these include (at least) sociology; biology; philosophy; politics; religion; public health; and psychology. Of course, for each of these perspectives there are, in turn, oodles (a technical term) of viewpoints, and the amicus writers seem to have expressed almost all of them. The American Bar Association has collected them all here and here.
It’s not surprising that these cases have generated so many thoughtful responses from different communities. Marriage equality is a hugely important issue all by itself, of course, but the debate also feeds into broader questions about the state of marriage more generally, and from there into still wider issues about the kind of society we want to have and to encourage.
Let’s look at three concrete examples, for context. A brief by the American Psychological Association, the American Medical Association, and other reputable professional organizations argues for marriage equality based on the accumulating pile of evidence showing that: same-sex attractions are normal expressions of human sexuality; same-sex couples form the attachments and commitments at the same depth as our heterosexual counterparts,; and kids thrive in families headed up by same-sex couples. On the other side is a brief by Princeton Professor Robert George and colleagues, which argues that extending marriage to same-sex couples will destabilize both the definition of marriage and the institution itself. The brief is a kind of hodgepodge of neo-natural law, bad social science, and raw speculation about negative long-term consequence if the same-sex marriage beast is released from its shackles.
And then there’s one of my favorites, by Dr. Maria Nieto, who is a biologist in the Cal State system. She points out that our commitment to the “two-sex only†model that supports the exclusion of same-sex couples from marriage isn’t consistent with the complex biological reality that “a not insignificant†percentage of the population expresses sex and gender in ways that don’t fit into this binary system; mostly, she’s talking about intersexed people, who may have physical and hormonal characteristics that place them somewhere between the male-female poles.
Well, this is all very interesting. (I mean, it really is! Read some of them if you have some time. You’ll learn lessons that extend far beyond the current controversy.) But, again, do any of these briefs matter?
There’s some reason to think they have mattered, in some cases. The Court considered them in some of the criminal procedure cases, for example. And occasionally such briefs are cited by the Supreme Court or by lower federal courts, a sign that they might have had at least some influence on the decision. To speak (ahem) about my own involvement for a moment: The federal court of appeals in Windsor cited an amicus brief by Family Law professors (including me!) in which we pointed out that DOMA is the first time that Congress butted in to the state law issue of who’s married, and who isn’t, by defining marriage as limited to the union of a man and a woman. (As you probably know, DOMA means that even if you’re married under your state’s law, your union doesn’t count for federal purposes.) Update: I just found this statement from former Justice O’Connor, taken from last night’s appearance on The Rachel Maddow Show (and thanks to David Badash for alerting me to this):
If [an amicus brief] gives you an intelligent look at the legal  issues, then it might be of some value to you, as a Justice.
And she said she read them! Whether they’ll affect the Justices’ thinking in these cases is anyone’s guess, though. If it’s true that it’s all up to Justice Kennedy, then perhaps he’s sitting up nights, briefs stacked on a table next to his chair, reading through the thick pile of verbiage in an attempt to gain wisdom about what to do. Let’s hope so, as the arguments for striking down these laws are much stronger than those on the other side. Reading the 120+ amicus briefs (not to mention those filed by the actual parties to the case) would doubtless only strengthen that conviction.
John Culhane is the co-author of the new book, Same-Sex Legal Kit for Dummies. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law, and is also a contributing writer for Slate.
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U.S. Rep. Mike Collins, Republican of Georgia, is under fire after praising University of Mississippi students, some wearing American flag outfits, mocking a Black woman protester by making monkey sounds and shouting, “lock her up.”
“Counter-protestors at the University of Mississippi made racist remarks — including monkey noises and comparisons to Lizzo — towards a Black woman who was part of a planned protest against the war in Gaza,” Los Angeles Magazine reported Friday.
Collins, who tried to defund Vice President Kamala Harris’ Office in November, declared his support for the counter-protesters at “Ole Miss,” as the University is called.
“Ole Miss taking care of business,” he wrote on social media, atop the video (below).
The counter-protesters, as evidenced in the video, appear to be mostly white.
A large number of users on the social media platform X responded, accusing the Congressman and the counter-protesters of racism.
“When is the inevitable ‘I don’t have a racist bone in my body’ tweet coming,” wondered Rewire News Group editor-at-large Imani Gandy.
“Which part is your favorite, Mike?” asked Fred Wellman, the former executive director of The Lincoln Project. “Is it the white kid acting like a monkey at the black woman or the white security guy acting like she’s a threat? I’m trying to figure out which flavor of racism has you all excited the most?”
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Harvard Law Cyberlaw Clinic clinical instructor Alejandra Caraballo responded to the Georgia GOP congressman, “Thanks for confirming you’re a massive racist piece of sh*t.”
Mississippi Free Press news editor Ashton Pittman wrote: “Rep. Mike Collins, R-Georgia, praises a video showing a University of Mississippi frat boy dancing like a monkey and making monkey noises near a Black woman student who was protesting for Palestine while other frat boys chant ‘lock her up.'”
In a separate post describing a separate video taken of the same group Pittman wrote: “Frat bros at @OleMiss chant, ‘Lizzo! Lizzo!’ and shout, ‘F**k you fatass, f**k you b*tch’ at a Black woman who was protesting for Palestine. Do people really think these counterprotestors are doing it to support Jews?”
Journalist John Harwood did not mince words, writing, “Congressman proud of the racism.”
“Okay, Mike. We get it,” wrote podcast host, documentary director, and author W. Kamau Bell. “You want to be famous for being a racist. Fine. I’ll help you become a famous racist. You’re welcome.”
The original video is here.
See Rep. Collins’ post and the video below or at this link.
Caution: the video is disturbing.
Ole Miss taking care of business. pic.twitter.com/JiL9hs2pHz
— Rep. Mike Collins (@RepMikeCollins) May 3, 2024
READ MORE: Noem Heads to Mar-a-Lago After Branding Kids She Ministered in Church ‘Little Tyrants’
Amid more damning revelations from her soon-to-be released book, embattled South Dakota Republican Governor Kristi Noem will head to Mar-a-Lago this weekend as ex-president Donald Trump auditions potential vice presidential picks in front of high-dollar donors. Noem was also slated to attend a Republican fundraiser in Colorado this weekend but it was canceled over alleged safety concerns after news broke she had bragged about shooting her 14-month old dog.
While Noem’s shooting to death of her wirehaired pointer, Cricket, which she detailed in the book, is still making headlines overnight a new revelation made news: Noem falsely claims in her book she met with North Korean dictator Kim Jong-un.
A spokesperson for Noem “seemed to concede that the Kim story was false Thursday night,” and notified her publisher, Politico’s Ryan Lizza reported in his exclusive.
But less noticed appears to be the actual text of Noem’s false story, in which she brands children she ministered in church “little tyrants,” and compared them to the murderous North Korean dictator.
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“Through my tenure on the House Armed Services Committee,” Noem wrote, according to Politico, “I had the chance to travel to many countries to meet with world leaders. I remember when I met with North Korean dictator Kim Jong Un. I’m sure he underestimated me, having no clue about my experience staring down little tyrants (I’d been a children’s pastor, after all).”
CNBC reported this week Trump “will mingle with potential vice presidential running mates and wealthy Republican donors at the Republican National Committee’s spring donor retreat. The meetings are likely to act as informal tryouts for a short list of politicos in the running to join the Trump ticket.”
The list of Republican “special guests” includes U.S. Senators Marco Rubio, Tim Scott, and J.D. Vance, Rep. Elise Stefanik, North Dakota Governor Doug Burgum, and South Dakota Governor Kristi Noem.
Also expected to attend are House Speaker Mike Johnson, U.S. Reps. Byron Donalds of Florida and Wesley Hunt of Texas, former GOP presidential candidate Vivek Ramaswamy, and other elected Republicans along with RNC co-chair Lara Trump.
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NBC News, which says Rep. Donalds is also under consideration, on Friday added there will be “a fundraising retreat that could serve as a screening session” for potential vice presidential running mates.
Meanwhile, the Jefferson County, Colorado Republican Party chair announced a fundraising dinner Noem was slated to attend was canceled after threats were made, The Denver Post reports.
“We understood there was a planned organized protest outside of the hotel, led by Progress Now,” Nancy Pallozzi said. “I felt that our event would be negatively impacted, and we could not take the risk that those who made threats would cause physical harm.”
Over the weekend independent 2024 presidential candidate Robert F. Kennedy, Jr. spoke at a fundraiser for a far-right anti-government group in Erie County, New York – a slice of the country that had a large proportion of residents arrested and charged for crimes related to the January 6 insurrection. Kennedy, a conspiracy theorist and vaccine denialist, increasingly is embracing the far-right.
“That group, Constitutional Coalition of New York State, has founders who not only have ties to Donald Trump but are also connected to the stop-the-steal movement through their activist network, which includes groups that had a presence at the Capitol on Jan. 6,” The Daily Beast reported Friday. “It’s yet another instance of Kennedy—who is mounting one of the most well-funded third-party presidential threats in decades—serving as a peculiar bridge between his own anti-establishment movement and Trump’s.”
The Southern Poverty Law Center includes the Constitutional Coalition of New York State (CCNYS) on its page of anti-government groups. Political Research Associates, which detailed the high proportion of January 6 residents arrested and charged, included the Constitutional Coalition of New York State in its February report on “The Rise of the Far Right in Western New York.”
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“If you don’t think the government is lying to you, you’re not paying attention,” Kennedy told attendees at the CCNYS fundraiser, The Buffalo News reports.
“CCNYS founders Nick and Nancie Orticelli are also affiliated with the Watchmen, a nearby militia who Nick has encouraged his social media followers to join. The Watchmen had several members at the Capitol on Jan. 6, and one member, Pete Harding, is still facing charges for violent entry and disorderly conduct on Capitol grounds,” The Daily Beast noted. “Nancie Orticelli has also hosted the Watchmen’s founder, Charles Pellien, on her weekly radio show on several occasions.”
One of Kennedy’s goals in traveling to New York was to get on the ballot for the November presidential election. Various polls show him taking votes from both President Joe Biden and ex-president Donald Trump, but Kennedy currently has only qualified to be on the ballot in three states, Utah, Michigan and Hawaii, the newspaper reported.
But The Washington Post on Thursday reported The American Independent Party of California, which has a history of “far-right ties,” and “backed segregationist and former Alabama governor George Wallace in 1968, nominated Kennedy for president.”
Kennedy “said this week that he has qualified to be on the ballot in California and will accept the nomination of the American Independent Party, which has a history of associating itself with far-right figures and individuals who have expressed racist views.”
Some news reports and RFK Jr. himself say the Trump campaign was actively courting Kennedy, attempting to convince him to consider being the ex-president’s 2024 vice presidential running mate.
“That MAGA dalliance with Kennedy could be coming back to bite the Trump campaign, some Republicans close to the former president worry,” The Daily Beast also reported.
“’They can only blame themselves,’ a Trump-aligned strategist told The Daily Beast, requesting anonymity to speak candidly about private conversations about the risk Kennedy poses, ‘because they cozied up to him and thought it was funny.’”
Watch WIVBTV’s report on Kennedy’s trip to New York below or at this link.
READ MORE: Trump Won’t Commit to Accepting Election Results if He Doesn’t Win State He Falsely Claims He Won
Congressman Pummeled for Praising Students Mocking Black Protester With Monkey Sounds
Noem Heads to Mar-a-Lago After Branding Kids She Ministered in Church ‘Little Tyrants’
RFK Jr., Embracing Far-Right, Spoke at Fundraiser for Anti-Government Group With J6 Ties
Election Denialism Embraced by ‘Large Proportion’ of Trump’s Followers: Report
Trump Won’t Commit to Accepting Election Results if He Doesn’t Win State He Falsely Claims He Won
News3 days agoCongressman Pummeled for Praising Students Mocking Black Protester With Monkey Sounds
News3 days agoNoem Heads to Mar-a-Lago After Branding Kids She Ministered in Church ‘Little Tyrants’
News3 days agoRFK Jr., Embracing Far-Right, Spoke at Fundraiser for Anti-Government Group With J6 Ties